Will Money Talk? the Case for a Comprehensive Cost-Benefit Analysis of the War on Drugs

Sweet, Robert W., Stanford Law & Policy Review

The "War on Drugs" has been a central concern of the justice system for the more than thirty years I have served as a federal district court judge in New York City. At the start of my tenure, it was a learning experience for me, as I was introduced to an industry with which I was unfamiliar, beyond the well-publicized stories of busts, codes, and conspiracies. In 1989, after more than ten years of accumulating doubts about the efficacy of drug prosecutions, the fairness of the harsh sentences imposed, and the social and economic forces underlying drug-related crime, I publicly questioned the validity of the War on Drugs.

In December of 1989, I spoke out about the need for reform. (1) I had my fifteen minutes of public attention and reiterated my position in various fora. (2) My comments emphasized the absence of evidence of the War's success, the massive size of the underground economy sustained by criminalization, and the need to adopt a therapeutic, rather than punitive, approach toward drug addiction. My primary recommendation was that Congress eliminate the federal criminal prohibition on drugs and regulate drug sales similarly to those of alcohol.

The subsequent twenty years have served only to fortify and amplify my conclusions. While there is a vast amount of data indicating the toll that the War on Drugs itself has taken on our society, evidence regarding the social and economic benefits of the present system remains scant. If all the relevant facts can be determined and disseminated through a comprehensive, high-level, well-funded study of the costs and benefits of the drug war, common sense, social policy, and public opinion will dictate an end to criminalization and the adoption of a public health approach to drugs. (3) Indeed, as 2008 marked the seventy-fifth anniversary of the repeal of Prohibition, parallels must be drawn between the present economic crisis and the bleak financial situation facing the nation during the final years of Prohibition. (4) "Change is the law of life," (5) and after three-and-a-half decades of the War on Drugs, at a time of national economic and budgetary turmoil, change is imperative.

Thirty-five years after the so-called War began, the United States is the world leader in incarceration, with approximately 1 in 100 adults imprisoned. (6) Of the nearly 2.3 million people behind bars, nearly half a million are incarcerated for a drug offense. (7) Drug offenders represent more than half of the federal prison population. (8) The number of drug arrests has more than tripled since 1980, (9) reaching a total of over 1.8 million in 2007, more than for any other offense, 82.5% of which were for possession. (10) Lengthy incarceration has not been reserved for the worst offenders; the overall average sentence length for a federal drug offense ranges from 129 months for crack cocaine to 40.4 months for marijuana, (11) with the majority of cocaine and crack offenders subject to five- and ten-year mandatory minimums, (12) despite the fact that the overwhelming majority of them, approximately 90% in 2005, committed no violence in connection with their drug crimes. (13) In state prisons, more than half of the inmates incarcerated for drug offenses have no history of violence or high-level drug trafficking activity. (14)

As has been well-documented, the enforcement of the drug laws has been discriminatory in both its implementation and its effects, although constitutional attacks have not met with appellate approval. (15) While it is estimated that African-Americans represent only 14% of regular drug users, they constitute 37% of those arrested for drug offenses, and 56% of state inmates incarcerated for drug offenses. (16) The African-American community suffers disproportionately from the one-two punch of mandatory-minimum sentences and the Sentencing Guidelines' crack-cocaine disparity; in 2007, African-Americans represented only 29.5% of all drug offenders, but 82. …

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